For many decades, New South Wales (NSW) has adopted a prohibition policy towards drugs. As early as 1895, the NSW authorities banned opium smoking (Bammer et al., 2002). Over the decades, several similar legislations have been passed banning various drugs including cannabis, heroin, cocaine and amphetamines among other substances. The government has also channeled vast resources to enforce illicit drug laws and policies. For instance, according to Healey (2009), in 1988, authorities spent about $258 million, a figure, which without doubt has increased substantially. Notwithstanding the government inquiries and investments, heated debates and legislative measures, illegal drugs are still one of the main social problems and political challenges in NSW.
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The fight against drugs has failed indubitably; prohibition is increasingly becoming flawed in principle with a resounding failure. It is obvious that due to a huge demand for drugs, new dealers and traffickers will certainly emerge. These drugs currently considered as illicit will never be eradicated. There is a persistent need to reform the drug laws and policies.
Some Important Offences
NSW drug laws distinguish between drug users and the drug suppliers/traffickers. They provide for different offences and recognize the seriousness of the offences committed. The penalties are also varied depending on the whether the accused is a first or a repeat offender. Over 30,000 arrests related to illegal drugs are made annually, majority of which relate to cannabis (Rosmarin and Eastwood, 2011). Since prohibition policy was adopted, legislations have regularly been reinforced, penalties made stiffer, and resources channeled to law enforcement gradually increased. The number of individuals indicted for and convicted of drug-related crimes escalates annually in New South Wales and entire Australia. Lawrence (2007) estimates that, slightly over half of the inmates in Australia’s jails are serving terms for drug-related offences. NSW drug laws have been alike a ratchet that could only be tightened.
The laws provide for four main drug offences, which are use, possession, cultivation and trafficking. A drug is defined as a substance of dependence if listed as illicit unless under medical prescription. Use refers to inhaling of fumes, smoking or otherwise introducing a drug into an individual’s body including another individual’s body. Penalties and sentences vary for the offences of use depending on the drug with minor punishments for cannabis.
Possession is the commonest drug offence. Hucklesby and Wincup (2010) describe the offence of possession as being in custody or having control of a drug. In the prosecution of an individual for this offence, knowledge of such possession must be demonstrated in the court. Possession extends also to illegal drugs found on the individual or their property, except if it can be proven the drugs do not belong to that individual.
Cultivation is defined as the action of sowing, planting, tending, nurturing or harvesting a prohibited plant. Any of these activities is considered offences of cultivation. If an individual cultivates a quantity that can be trafficked or plans to vend even a small amount, he will be charged for possession, cultivation and trafficking. To an extent, the severity of the sentence varies widely and is influenced by the number of prohibited plants cultivated. Kleiman, Caulins and Hawken (2011), for instance, evidence that less than five plants may earn the accused a two-year sentence while over 1000 plants attract a life sentence.
Trafficking is considered a serious offence. According to Moore (2002), NSW drug laws extend trafficking to include manufacturing substances of dependence; selling, offering for sale, agreeing to sell; exchanging; preparing substances of dependence for trafficking, or being in possession for sale, a substance of dependence. Trafficking of commercial quantities attracts the most severe penalties. Bail can be denied except in exceptional situations. The amounts of drugs that qualify as trafficable or commercial quantities vary depending on the drug. For instance, Macintosh (2006) documents that NSW drug laws classify commercial quantities of heroin as 250g while cannabis ranges from 500 grams to 25 kilograms. Trafficable quantities are 3 grams and 300 grams for heroin and cannabis respectively. LSD has the lowest quantities among all the drugs of dependence.
Statutory Doctrines Created To Assist In the Prosecution of Drug Offences
NSW drug laws did not emanate from a comprehensive root and branch review. They are because of slow accretion. Opium and cannabis were among the first drugs of dependence to be banned. Chinese, the principal reason for its prohibition, were primarily using opium. Cannabis was banned in Australia in 1926 after an international convention the previous year (Rosmarin and Eastwood, 2011). In New South Wales, cannabis was banned in1927. However, according to a research by Lawrence (2007), authorities did not have a specific reason to ban it since nobody was using it. Current prohibition drug laws and policies date back to first opium control legislation over a century ago. Many of the doctrines have been copied or adopted from Commonwealth Legislations and drug laws.
The earliest legislations were targeted at prohibiting the use of Opium. Opium use was particularly high among Chinese immigrants, and early Chinese opium laws were enacted due to racial bias against the Chinese and moral pressure from middle-class women lobby groups. A supplication tabled to the NSW parliament in 1887 purported that European women, after being induced to use opium dens, turned into habitués of these establishments where they practiced inconceivable immorality (Clune and Griffith, 2006). The first drug laws controlling opium were ratified in NSW when only individuals using opium were Chinese. Later, doctrines prohibiting the use of heroin, morphine and cocaine were built upon the precedent of the opium control laws. These drug laws and prohibitive controls developed through 1920s and 1930s, gradually, becoming more rigorous and never relaxed.
Another doctrine to enforce drug laws in New South Wales is the Misuse and Trafficking Act of 1985, which aimed at empowering the police to help them find evidence to support drug-related prosecutions (Rosmarin and Eastwood, 2011). Among other things, it empowers the police to stop, search and detain any individual with or suspected to have prohibited drug or plant. The act also allows the law enforcement to search the suspect’s belongings. In addition, it authorizes the police to seize so found evidence or belongings of the suspect.
Others include the legislations pertaining to internally concealed drugs or in cases where the suspect swallows the drugs to divest the evidence in order to evade detection and seizure of the drugs. The police powers (internally concealed drugs) act of 2001 gives the law enforcement of New South Wales the power to obtain a court order to move the suspect to a hospital, surgery or other practicing rooms of a medical practitioner in order to carry out an internal search (Kleiman, Caulins and Hawken, 2011). Further, the act permits the use of procedures such as ultrasound, magnetic resonance imaging, X-ray and other appropriate medical imaging techniques to perform the search. If the medical images show the presence of any drugs inside the suspect’s body, the law enforcement is allowed to detain the suspect for up to a week until he or she passes the drug out naturally. Hucklesby and Wincup (2010) note that this doctrine has particularly been applied in Cabramatta suburb in Sydney where drug dealers traffic heroin in small foil sealed caps carried in their mouths (mouth dealing) and often swallow them when faced with possible arrest by the police.
In December 2006, another legislation that supports the police to detect drivers that are driving after using illicit drugs including alcohol was passed (Macintosh, 2006). In a research by Bummer et al. (2002) on driving and illegal drugs, many individuals drove a car soon after using an illegal drug. Of the sample, 17% reported they had used heroin, while 5% and 1% had used cannabis and ice respectively. The legislation gives the NSW law enforcement authorities the power to perform roadside drug driving tests (RDT). Among the drugs that can be detected in the saliva, include ecstasy, methamphetamine (an active component of marijuana) and the THC. The doctrine criminalizes driving with the presence of morphine and cocaine in urine or blood except if under legal prescription. It also spells out the penalties for positive results of driving whilst under the influence of illicit drugs, which include jail sentences, suspension of driving license and fines as high as $2200 (Macintosh, 2006).
Major Policy Problems Associated With the Criminalization of Drugs
To be deemed successful, prohibition ought to minimize the cultivation, production, transport, distribution, sale and use of illegal drugs, stem the flow of drug profits and reduce the harms resulting from their consumption. However, prohibition has not been able to achieve this. Porter (2012) documents that over the last few years, the production of opium tripled while that of cocaine doubled. These values indicate that prohibition has failed dismally to limit the production of cannabis, cocaine, heroin and other illegal drugs. Despite the criminalization of various drugs and adoption of prohibitionist policies, there are few tangible outcomes gained by the approach. Use of illegal drugs remains high, numbers of drug offences are at record levels, and authorities are spending enormous resources in the fight against drugs. The costs of prohibition are among the main problems facing the criminalization of drugs. For instance, reports indicate that a decade ago, the Australian authorities were spending nearly $ 1.5 billion on the fight against drugs and productivity losses due to drug offences were about $0.5 billion (Weatherburn, 2004). It is without doubt that these figures have increased significantly, yet the gains from these efforts are negligible.
Criminalization aims at eradicating the drug market, a goal that cannot be met. Criminalization and the consequent strict laws propel the drug users to take drugs that are more powerful and to use them in harmful ways. Criminalization hampers public health interventions, deaths due to drug overdose; increase in HIV cross-infection among injecting drug users and other negative consequences of drug use. The policy pushes individuals, especially the young generation, to associate with deviant subcultures that result in an increase in illegal drugs use and drug-linked crime. Experimentation with illegal drugs is increasing since 2004, with as many as 60 percent of individuals in the 20 to 39 age group reporting having used marijuana (Porter, 2012). Research has indicated that enforcement of drug laws leads to employment and relationship problems, which can aggravate substance misuse disorders (Weatherburn, 2004). For instance, he notes thousands of former convicts in NSW are unable to secure a job, a house to rent or even a credit card due to the long-term stigma and discrimination associated with a drug offence – sometimes just tiny amounts of an illegal drug (Bammer et al., 2002). The main challenge of criminalization is that successes in eliminating one source of the drugs are annulled almost immediately by the emergence of other sources and drug dealers.
Another problem facing the criminalization of drugs is increased violence, corruption and property crime. Several government investigations have highlighted illegal drug markets to be a leading cause of corruption and other forms of crime (Jacobsen, 2012). Since the drug markets are exclusive realms of criminals, corruption will be common in various institutions such as the police force, civil societies and anti-drug agencies. This is further confounded by the verity that these criminal elements are underground and therefore, difficult to tackle. An example is the recent prosecution of the former NSW deputy director of criminal investigations. He was found guilty of conspiring with drug dealers to import illegal substances of dependence and subverting the course of justice (Jacobsen, 2012). Coupled to this problem is the way many people react to individuals who are dependent on drugs. Drug abuse and dependence are a complex condition with a combination of several causes. It is futile to try to address such a complex problem solely through punishment.
The misallocation of resources meant for the fight against drugs has also been identified as a problem facing the criminalization of drugs. Majority of the resources are allocated to law enforcement and punishment (despite increasing evidence that is not effective) instead of being channeled to strategies that have been proven to be effective such as treatment and harm reduction. Although in the past the law enforcement has accomplished several seizures and successfully convicted many traffickers, it has not curtailed the supply of drugs. Many drug users in NSW acknowledge that illegal drugs are relatively remarkably easy to get, as they are readily available in the streets. The retail prices of these drugs are among the most effective measures and indicators of the law enforcement efforts on eradicating the supply of the illegal drugs. Over the years, the retail prices of various drugs have been on the drop making them more affordable. For instance, Kleiman, Caulins and Hawken (2011) observe a gradual reduction in the prices of illegal drugs. For instance, the retail price of a gram of pure cocaine is 74% cheaper than it was three decades ago; heroin and methamphetamine are 16% cheaper than they were ten years ago.
Experts and analysts agree that expansion of preventive and treatment services has been tremendously effective. During the 1980s through to 1990s, the NSW authorities implemented the harm minimization approach to reduce the harmful effects of drug use (Bammer et al. 2002). They included supervised injecting centers, de-penalization of minor cannabis offences and methadone maintenance programs and all resulted in measurable and demonstrable benefits. Currently, a large percentage of the resources are allocated to law enforcement and legal activities, a practice, which is unreasonable and ineffective. Other countries have successfully decriminalized various drugs and are witnessing huge benefits and reduction in drugs harms and offences. The Latin American leaders have discussed and adopted drug law reforms that focus on decriminalization and drug regulation (Cave, 2012). Rosmarin and Eastwood (2011) add that countries such as Mexico permit the possession of tiny amounts of cocaine (0.5g) whilst in Spain the allowed amount of cocaine is 7.5g. Decriminalization in various countries involves review of penalties individuals may get for civil use or possession of drugs. Other countries like Czech Republic and other Australian states allow law enforcement to issue fines similar to those issued for traffic violation (Armitage, 2012). Cave (2012) documents that in Brazil and Uruguay require persons charged with drug offences to appear before a judicial officer to be handled the charges and necessary penalty. Porter (2012) positively argues that the United States government would collect over $ 65 billion annually if illegal drugs were legalized.
The fight against illegal drugs in the New South Wales, Australia and other countries has comprehensively failed. Authorities acknowledge that the prohibition policies against drugs have failed. The best way to deal with the problem of illegal drugs is to institute reforms of the drug laws and allow the state to supply and regulate the use of these drugs. Available evidence supports Nicholas Cowdery’s views that the only lucid solution to the enigma of illegal drugs is the state to supply them (Armitage, 2012). He was once a director of public prosecutions of New South Wales. Despite the practice of prohibition drug policies and legislation of several doctrines, evidence proves the inability of this approach to curb the problem of drug use and eliminate illegal drug markets. He argues that when the state legalizes illegal drugs and supplies them, it will eliminate the criminals that are currently the top gainers from the drugs trade. Drug laws should be guided by scientific and empirical evidence and success evaluated through measurement of harm reduction to health, welfare and safety of drug users and the society. Cowdery’s argument is true that if the state oversees the drug trade it will effectively reduce preventable drug-related deaths and crimes as well as corruption. All the evidence reviewed in this article support Cowdery views that better outcomes would be achieved by strictly controlling the licensing, manufacture and distribution of substances such as ecstasy, cocaine, heroin and cannabis. Licenses would be extremely difficult to obtain and easily lost. Revenues collected from the sale of these drugs could be allocated to rehabilitation programs for drug addicts.
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